On 3 June 2009, the Constitutional Court of South Africa handed down judgment in the matter of Trustees for the time being of the Biowatch Trust v The Registrar, Genetic Resources and Others, bringing an end to a long-standing legal battle. The matter dealt with the approach that the courts should adopt when making cost orders in constitutional litigation.

In 2002, after a number of unsuccessful attempts to request information relating to the development of Genetically Modified Organisms (GMOs) from the Department of Agriculture, Biowatch, a small environmental public interest NGO, launched an application against various government authorities in the North Gauteng High Court.

The application was brought in terms of Section 32 of the Constitution, seeking an order declaring that Monsanto furnish eleven categories of information.

The application was heard in 2004 and was decided in February 2005. The court concluded that Biowatch had a constitutional right to the information requested and that Biowatch be given eight out of the eleven categories of information. However, the High Court also ordered that the government authorities did not have to pay Biowatch's costs but instead, Biowatch had to pay Monsanto's costs. Monsanto, a large developer of GMOs in South Africa, had intervened in the proceeding to protect information that it had supplied to the government authorities.

This was contrary to customary practice for cost orders, which is to award costs to the successful party and against the unsuccessful party. Biowatch, represented by the Legal Resources Centre (LRC) appealed the costs orders before the full bench of the North Gauteng High Court.

In November 2007, the appeal court handed down judgement dismissing the appeal and ordered Biowatch to pay additional costs of the appeal. In May 2008, Poswa J writing for the minority ordered that the costs orders against Biowatch be overturned. The judgment provided a basis for further appeal.
The Supreme Court of Appeal dismissed Biowatch's application for leave to appeal. As a result, Biowatch applied to the Constitutional Court for leave to appeal on two grounds:

1. Against the failure of the High Court to order the governmental authorities to pay its costs, and
2. Against the order that Biowatch should pay Monsanto's costs.

Writing for the unanimous Court, Sachs J held that, although appellant courts are often reluctant to interfere with the exercise of discretion in relation to cost orders, the High Court had misdirected itself in the whole matter of costs by not giving appropriate attention to the fact that this was a constitutional matter in which Biowatch was seeking to vindicate constitutional rights. The Court further held that the High Court's decision was demonstrably inappropriate on the facts, and unduly chilling to constitutional litigation in its consequences. The primary consideration in constitutional litigation must be the way in which a costs order would hinder or promote the advancement of constitutional justice. The customary practice for cost orders in constitutional litigation must be applied unless the application is frivolous or vexatious or in any way manifestly inappropriate. Therefore as Biowatch was in fact substantially successful the government authorities should accordingly pay its costs.

On the cost order in favour of Monsanto, the Court held that the litigation was not about a dispute between Biowatch and Monsanto but about the failure of state officials to meet their constitutional obligations. Biowatch secured eight out of eleven categories of information, while Monsanto succeeded in protecting some confidential information that it had given to the government authorities. This was a new and untested area of the law as the litigation commenced before the Promotion of Access to Information Act came into force. Therefore the costs award against Biowatch in favour of Monsanto should be set aside, and there should be no order of cost.

In the words of Sachs J, this matter was of ‘great interest to the legal profession, the general public, and bodies concerned with public interest litigation'. The decision has implications for justice in South Africa in that organizations acting in the public interest, such as Biowatch and the LRC, will be able to continue in their missions to vindicate the rights of the voiceless without having to worry about adverse cost orders that could possibly lead to them closing their doors. This is fundamental in a constitutional democracy.